Press rights issues have always interested you both in practice and on the court. It seems the central question to some recent decision that, with all the blogging and so on out there, what is the media? What is a publication? Has this put a constraint on how the court deals with these cases?
That is a tremendously important issue because, for example, in the cases dealing with journalistic privilege, it’s one thing to say that The Globe and Mail and National Post are responsible organizations that have codes of conduct and certain situations where they extend anonymity to a source and certain other situations where they won’t. But where do you draw the line between Kirk Makin of The Globe and Mail and Fred Smith, who is doing a blog on some anonymous tip, who writes some incredibly defamatory remark accusing some political figure of rank corruption, the blog goes viral and the politician is at a loss as to how to answer it? There is a saying that a lie goes around the world before truth gets its shoes on. So I think courts are extremely cautious when they are talking about special rights of the media. The media is a very amorphous concept and there are a lot of people who are going to claim the benefit of the privilege who are not what we would regard as full-time, responsible journalists.
Does this reality become something of a curse for established media who are trying to ground rights?
What it means is that the ever-broadening scope of the media may compel a different view of media rights than what we had when there were a few newspapers and radio stations, all of which were quite tightly disciplined.
Who will have to establish who the press really is – the press itself or the courts?
I think clearly the press has to think through what its responsibilities are and impose self-discipline.
And will the press define who is its membership?
No, I don’t think the press can self-define. Ultimately, it will be for the courts to develop these principles in a media-neutral sense. Which is what I tried to do in the National Post case. It was to say, ‘Look, if you are a blogger and you come within this public-interest defence, then you have the advantage of this defence. And if you are from The Globe and Mail, you have no greater rights than the blogger but it may be easier for you to establish the public-interest defence because you are functioning within a disciplined environment which is conducive to establishing your entitlement.’
Is it fair to say that a significant part of what you stood for on the court was an attempt to bring reality to many areas of law, to do away with exotic interpretations and ground the law in reality?
I think that is correct. Because of my background as a practitioner, I think the law has to work in practice. As a practitioner, you realize the horrendous cost of going to court. You have to make the law as predictable as possible. You have to make the system conducive to the settlement of mediation of disputes. Quite frankly, most practitioners and litigants aren’t really interested in the theory of the law. They want to know what the outcome is. Over the period of my life in the law, we are moving more and more from a rules-based system to principles. Instead of pointing to a rule and saying, ‘That’s the rule and here’s the outcome,’ the courts say, ‘Well, the principle is this.’
An example is the hearsay rule. Intellectually, it is a very positive development. The law should be about principle rather than black-and-white rules that have lost their purpose. But you have to formulate the principle in a way that people can understand and apply it. I think that is an institutional responsibility.
Could you feel rest of court looking to you in for that practical application of reality in the trenches, since you came straight from practice?
I don’t think so. When we get around the conference table, whether I spent my life in income tax law or not, I have an opinion on the issue that is before the court. I express that point of view. I think it’s terrific that there isn’t deferral to supposed expertise. First of all, it would completely undermine the idea of nine independent minds trying to focus on it. Secondly, the person who has been immersed in it most of their career might not see the forest for the trees. What they know might be conventional wisdom, but it might be wrong.